Supreme court verdict on “Right to Privacy” is new fundamental right.

India is certainly experiencing a prudent and justifiable high since the past few days. In yet another historic judgement, the apex court of the country declared “Privacy” as a fundamental right, reinforcing its intrinsic value to preserve Indian citizen’s “Right to Life” and “Personal Liberty”. This landmark decision was unanimously ruled on August 24, propelling India into the orders of such progressive societies where safeguarding privacy of their citizens is well ensured. Privacy laws around the world too have evolved over the years and developing countries will surely take a note of this breakthrough hearing.

Highlights of the ruling?

All 134 crore Indians are affected by this order

63 year old previous judgment that had denied recognition of privacy as a fundamental right has been overruled

8 judge bench judgment in the MP Sharma case and a 6 judge bench judgement in Kharak Singh case, that refused to recognize privacy as a fundamental right, has been overruled

The Supreme Court nine judge bench headed by CJI J S Khehar, included Justices S A Bobde, J Chelameswar, R F Nariman, R K Agarwal, D Y Chandrachud, Sanjay K Kaul, S Abdul Nazeer and A M Sapre established several milestones to outline the description of dignified life and the State’s role and obligation in helping citizens to lead an honourable life. The judgement laid specific emphasis on values of dissent and tolerance, defining State’s limits in intervention in the lives of its citizens. Right to privacy is constitutionally protected under Article 21 and as part of the freedom guaranteed by Part III. Reiterating this, the bench added “like the right to life and liberty, privacy is not absolute. The limitations which operate on the right to life and personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just and reasonable. The law which provides for the curtailment of the right must also be subject to constitutional safeguards.” This echoed that privacy cannot be termed as a “standalone homogenous fundamental right” as it doesn’t work as a common law right and is rather a sub-species of several rights.

In the light of the revolutionary decision convened by the Supreme Court, certain challenges surface in its stake of addressing pertinent issues. What will happen to the enforcement of Aadhaar Card? Does the judgement decriminalize sexual relations among the LGBT community? What are the implications of right to privacy in the cyber space? What about prohibition onbeef eating and similar restrictions that violate an individual’s right to personal choice? While SC stated that “privacy constitutes the foundation of all liberty”, Justice Chelameswar mentioned that, “I do not think anybody would like to be told by the state as to what they should eat or how they should dress.”

The instant trigger to this hearing on privacy saw more than 20 petitions against Aadhaar. The ruling set the platform for a three bench judge to resolve validity of Aadhaar, so as to decide whether collection of citizen’s biometric date and its linking to various commercial activities would violate their right to privacy. Challenged by 21 petitions across states, HC judge K S Puttaswamy will be scrutinising Aadhaar’s validity. It is most likely that Aadhaar will continue to exist, but with clearer guidelines for its application and usage. As quoted by TOI, Thursday’s ruling allows government to collect individual’s data for “national security or for its effective distribution of scare national resources, food and other essential items.” Bezwada Wislon, an Aadhaar case petitioner said to the media “This makes citizens feel like citizens….in the name of security, they were becoming technology slaves. This judgement is a warning to the state as to how much it can enter the life of a citizen.” Centre now has the additional responsibility of enabling robust data protection mechanism as held by SC on its ruling.

With regard to the challenges of the newly adorned “right” in the internet and data mining arena, SC recognizes the challenges posed on sharing of personal data which increases encroachment by firms collating such meta-data for commercial usage. Nandan Nilekani, reported to be regaining the Chief Executive role in the tech giant Infosys, mentioned the SC judgement as a superb one. He added, “Privacy is a right, but not absolute. It recognizes that key elements need to be worked out in data protection law.”

SC’s ruling on the Right to Privacy has also been acclaimed by several activists working for the LBGT community in India, who feel that the ruling will at least protect people’s sexual orientation from any kind of violation.” Advocate Anand Grover, who represented NAZ Foundation in court, told TOI, “it is now only a matter of formality” to repeal Section 377. However, complete clarity in this respect is yet to come. Truncating the 2014 judgement that criminalizes homosexuality, SC said that “since the challenge to Section 377 is pending consideration before a larger bench of court, we would leave the constitutional validity to be decided in an appropriate proceeding.” Broadly, the judgement seeks to recognize and respect sexual preferences of the LGBT community. Hope, soon more affirmative decisions come along.

While various connotation of privacy needs to address its several facets and ensure checks and balances to prevent violations thereof, this decision undoubtedly glorifies the move in favour of its citizens. The reinstatement of Right to Privacy as a fundamental right would require and trigger relevant constitutional remedies. As judicious discussions and debates shape for more analysis into understanding impact and implementation of this momentous hearing, Indian judiciary has set a stage to invigorate constitutional leap. Let’s wait to see how the Modi government manages to tackle challenges packaged in this Pandora’s Box!

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